USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-1623
DOUGLAS E. YEO, Individually and on Behalf of His Children and as
Chairman of the Lexington Parents Information Network,
Plaintiff, Appellant,
v.
Town of LEXINGTON, Jeffrey Young, Superintendent, David Wilson,
Principal, Samuel Kafrissen, Karen Mechem and Joseph Dini, Chairman,
John Oberteuffer, Lois Coit, Susan Elberger and Barrie Peltz,
Individually and as They Are Members of the Lexington School
Committee,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
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Bownes, Senior Circuit Judge,
____________________
Selya, Boudin, Stahl, and Lynch,
Circuit Judges.
_______________
____________________
John W. Spillane, with whom John J. Spillane and Gregory D. Smith
________________ ________________ _________________
were on brief for appellant.
Adam P. Forman, with whom Lois Brommer Duguette, Sarah A.
________________ _______________________ _________
Olivier, and Testa, Hurwitz & Thibeault, LLP were on brief for
_______ __________________________________
appellees.
S. Mark Goodman, Michale C. Heistand, Robert A. Bertsche, and
________________ ____________________ ___________________
Hill & Barlow for the Student Press Law Center, National Scholastic
______________
Press Association, Journalism Education Association, Scholastic
Journalism Division of the Association for Education in Journalism and
Mass Communication, Columbia Scholastic Press Advisers Association,
New England Scholastic Press Association, and Yankee Press Education
Network; Dwight G. Duncan for the Massachusetts Family Institute;
_________________
James C. Heigham, and Choate, Hall & Stewart for Massachusetts
__________________ ________________________
Newspaper Publishers Association; Gwendolyn H. Gregory, Melinda L.
__________________________________
Selbee, Timothy B. Dyk, John Bukey, Jones, Day, Reavis & Pogue for the
__________________________________ __________________________
National School Boards Association, Illinois Association of School
Boards, and California School Boards Association's Educational Legal
Alliance; Michael J. Long, Rosann DiPietro, and Long & Long for the
________________ _______________ ___________
Massachusetts Association of School Superintendents, on briefs amici
curiae.
____________________
December 9, 1997
____________________
OPINION EN BANC
____________________
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LYNCH, Circuit Judge. This case, involving speech
LYNCH, Circuit Judge.
_____________
interests on both sides, arises from the decision of two
public high school student publications -- the newspaper and
yearbook -- not to publish an advertisement. The
advertisement promoted sexual abstinence and was proffered by
a parent, Douglas Yeo, in the aftermath of a decision by the
Lexington, Massachusetts School Committee to make condoms
available to students as a public health matter. Yeo had
campaigned against the condom distribution policy and lost.
The two high school student publications declined to publish
the advertisement on the grounds that each had a policy,
albeit unwritten, of not running political or advocacy
advertisements.
The civil rights action brought by Yeo against the
Town, the School Committee, Superintendent and school
officials was terminated on defendants' motion for summary
judgment. The district court judge concluded that no state
action had been shown. A panel of this court, this judge
dissenting, reversed, holding that summary judgment should be
entered for Yeo on his claims that there was state action,
that each student publication was a public forum, and that
the decisions not to publish were impermissible view point
discrimination. 1997 WL 292173 (1st Cir. June 6, 1997).
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This court granted en banc review1 and withdrew the panel
opinion. The en banc court now affirms the decision of the
district court entering summary judgment for defendants on
the ground that state action has not been shown.
I. The Facts
We review the facts in the light most favorable to
Yeo, the party opposing summary judgment, drawing all
reasonable inferences from the record in his favor. Swain v.
_____
Spinney, 117 F.3d 1, 2 (1st Cir. 1997).
_______
A. The Publications
________________
This case involves two distinct Lexington High
School (LHS) student publications, the LHS Yearbook and the
LHS Musket. The Yearbook was operated entirely by a staff of
______
about sixty students; all editorial, business, and staffing
decisions were made by students. During the 1993-94 academic
year, this staff was headed by two co-editors-in-chief, Dow-
Chung Chi and Natalie Berger. Karen Mechem, a LHS teacher,
____________________
1. The court acknowledges the assistance provided in the
briefs amici curiae filed by the: National School Boards
Association, Illinois Association of School Boards, and
California School Boards Association's Educational Legal
Alliance; Massachusetts Newspaper Publishers Association;
Massachusetts Family Institute; Massachusetts Association of
School Superintendents; Student Press Law Center, National
Scholastic Press Association, Journalism Education
Association, Scholastic Journalism Division of the
Association for Education in Journalism and Mass
Communication, Columbia Scholastic Press Advisers
Association, New England Scholastic Press Association, and
Yankee Press Education Network.
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was the Yearbook faculty advisor. Mechem was paid a stipend
of less than $2,000 for that activity. Apart from Mechem's
stipend and the use of LHS buildings and facilities, the
Yearbook is financially independent from the school and is
funded entirely through the sale of the books to students and
advertising.
Like most yearbooks, the LHS Yearbook included
pictures of seniors and other students, sections on sports,
academics, and activities, and an advertisement section.
This advertisement section was largely comprised of
congratulatory or commemorative ads purchased by students and
their families. As the Yearbook advertising order form
suggested, student ads might include "[b]aby pictures, group
photos taken in the setting of your choice, [or] pictures of
meaningful people and/or places." A few advertisements were
also sold to local businesses; most of these included
congratulatory messages to the graduating class.
During the 1993-94 academic year, the Yearbook's
unwritten policy was to publish advertisements from those
local businesses which the students frequented or had some
relationship with during their high school years. In keeping
with this policy, students selling ads targeted those
businesses that fit the Yearbook theme of fond memories. The
Yearbook's policy was not to publish any political or
advocacy advertising, including ads from candidates for
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student government.2 The purposes of this policy were to
ensure that the advertising section of the Yearbook was
congruent with the rest of the publication and to prevent the
Yearbook from becoming a bulletin board for competing issue
groups or candidates in a way that would interfere with the
commemorative purpose of the Yearbook.
The LHS Musket is a student-written and edited
______
newspaper that is published four or five times a year. All
editorial, operational, and staffing decisions are made by
the student editors. During the 1993-94 academic year, Ivan
Chan served as the Musket's editor-in-chief, Dong Shen was
______
the business manager, and Samuel Kafrissen was the faculty
advisor. Students do not seek or obtain the approval of the
faculty advisor for any editorial or operational decisions.
Kafrissen is paid a stipend of $1,373 by LHS, and the Musket
______
receives about $4,500 a year from the School Committee. The
Musket has no physical facilities at LHS, other than a mail
______
box; all the layout is done at editors' homes. The Musket
______
____________________
2. The record does not reveal whether political or advocacy
advertising other than the ad giving rise to this litigation
was ever submitted to the Yearbook or the Musket. However,
______
those affiliated with the Yearbook and the Musket believe
______
that neither has ever published a political or advocacy
message or accepted an advertisement from a political or
advocacy organization. Yeo offers no evidence to the
contrary, and the record, which contains the advertising
sections of several Yearbooks, bears out defendants'
description of the types of congratulatory advertising
printed. No evidence was produced that the Musket had ever
______
printed a political or advocacy advertisement.
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typically includes news articles about the high school,
features, editorials, letters to the editor, sports coverage,
and humor columns, all written, edited, and produced by
students. The Musket is described in literature distributed
______
to the student body as being a "student run newspaper" which
is "written, edited and distributed by students." The
editorial page bears a legend stating expressly that the
opinions stated there are those of the student editors or
newspaper staff and not of school policy.
Not every issue of the Musket contains advertising.
______
Those that do contain two or three small ads from businesses
that cater to student tastes. During the 1990s, those
advertisers have included a bookstore, a video store, a music
store, a driving school, a deli, a hair salon, SAT prep
courses, and, around prom time, a tuxedo rental store and a
dress shop. For the 1993-94 school year, the Musket created
______
an "Advertisement Form" for potential advertisers. The form
stated that: "The award winning Lexington High School student
newspaper provides area businesses and non-profit
organizations the opportunity to place advertisements in the
Musket." The form did not state that ads were subject to
______
editorial approval, although it did note that, depending on
the issue, ad size might have to be adjusted and ads might
have to be edited, by the paper's staff, for length. The
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form also stated that "[p]ayment . . . for an ad will occur
only if and after we publish an ad." (emphasis added).
__
Pursuant to an unwritten policy, the Musket has
______
never accepted advocacy or political advertising, including
that from candidates for student government. The purpose of
this policy was to prevent the Musket from becoming a
______
"bulletin board" for warring political ideas. The students
also rejected the idea of allowing cigarette ads in the paper
for fear that such advertising would be read as an
endorsement of smoking.
B. Yeo's Submission of Advertisements
__________________________________
In 1992, the Lexington School Committee adopted a
policy making condoms available to students at LHS without
parental permission. This measure was the subject of
political controversy in Lexington, and Douglas Yeo, a town
resident and parent, emerged as a leading opponent of condom
distribution and other "safe sex" policies. Yeo headed a
group called "Lexington Citizens for Responsible School
Policy," which sponsored a non-binding town-wide referendum
on the School Committee's condom policy.
The Musket ran both news articles and editorials on
______
the policy and the referendum. Yeo thought these articles
misrepresented his group's position. In January 1993, Yeo
requested a meeting with LHS Principal David Wilson
concerning his grievance. Wilson suggested that Yeo submit a
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letter to the editor correcting the alleged inaccuracies, but
advised Yeo that any decisions regarding corrections would
have to be made by the student editors. Yeo did not contact
the student editors. In March 1993, the voters of Lexington
approved the condom distribution policy.
Subsequently, in May 1993, Yeo founded the
Lexington Parents Information Network ("LEXNET"). LEXNET's
stated goal was to distribute information about public
education to parents via newsletters and meetings.
1. The Yearbook Ad
_______________
On November 1, 1993, Yeo, as Chairman of LEXNET,
submitted a full page ad to the 1994 LHS Yearbook. The ad
copy read:
We know you can do it!
ABSTINENCE: The Healthy Choice
Sponsored by: Lexington Parents Information Network(LEXNET)
Post Office Box 513, Lexington Massachusetts 02173.
The ad was accompanied by a check for $200.00.
Mechem, the Yearbook advisor, acknowledged receipt
of the check and placed the ad in a drawer without giving it
a second thought. In keeping with Yearbook procedures, the
LEXNET ad was "warehoused" in a drawer with other ads pending
submission to the publisher for the printing of proofs.
Natalie Berger, a senior and co-editor-in-chief, noticed the
ad in the drawer and felt that the ad was "out of context"
with the advertising section of the Yearbook. However, she
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decided to postpone a publication decision until she saw the
ad in proof form, which was typically when critical editorial
decisions were made.
In January 1994, a large number of proofs,
including those of Yeo's ad, came back from the printer. All
the student editors attended an editorial meeting at which
they looked over the various ads and copy. After much
discussion, the editors decided that Yeo's ad was a political
advocacy statement that was out of context with the rest of
the Yearbook and that had no place in that publication.
Although the students decided to reject the ad as drafted,
they still wished to include a message from LEXNET if the ad
could be rewritten to conform with the rest of the Yearbook.
The students did not consult with Mechem or any other member
of the faculty or administration prior to making this
decision.
The Yearbook editors asked Mechem to notify Yeo of
their decision. The students also asked Mechem to convey
their request that Yeo's ad be revised to express a
congratulatory graduation message. On February 1, 1994,
Mechem called Yeo, and told him that the students would like
to have the ad rewritten. Yeo refused to revise the ad and
threatened to sue the Yearbook unless his ad was published as
submitted.
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The student editors discussed the issue again, and
decided to stand by their original decision to reject Yeo's
ad. They asked Mechem to write to Yeo, returning his check.
On February 4, Mechem wrote to Yeo:
Because of the non-controversial nature
of the advertising section of the
yearbook, we have decided not to print
the advertising you have submitted.
Please accept my apologies for the
inconvenience that our reviewing
procedure may have caused.
A $200 check was enclosed. Mechem told Principal Wilson
about Yeo's ad and the students' decision to reject it.
Yeo replied by fax on February 13, 1994, writing:
Based on our understanding of the right
of equal access and free speech, we do
not accept your rejection of our ad and
ask that you reconsider your decision to
censor it. We will not be cashing your
check at this time.
Should you not reverse your decision,
we will avail ourselves of every possible
avenue open to us in order to protect our
rights as advertisers.
2. The Musket Ad
_____________
On January 3, 1994, Yeo wrote to Dong Shen, a
senior and the business manager of the Musket, requesting
______
information about advertising procedures and rates. The
letter was not on LEXNET stationary and did not identify Yeo
as a member of that group. Receiving no reply, Yeo wrote to
Shen again on January 20, requesting the information "as soon
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as possible," and copying Ivan Chan, the editor-in-chief, on
the letter.
On January 25, Shen wrote to Yeo, providing the
requested information and taking full personal responsibility
for the delayed response. Shen concluded by noting, "Of
course ads are still subject to the approval of the editorial
board."
On February 1, 1994, Yeo submitted an ad to the
Musket. The text was identical to the Yearbook ad previously
______
submitted, except that, above LEXNET's address, it contained
the line: "For accurate information on abstinence, safer sex
and condoms, contact:[LEXNET]."
The student editors of the Musket discussed the ad
______
extensively. In mid-February, they met and decided that
Yeo's ad constituted a political statement that they would
not run as a matter of policy. On February 24, 1994, Shen
wrote to Yeo:
After careful consideration of your
advertisement from LEXNET, the Musket
came to the difficult decision of not
printing it. In no way did we want to
limit your right to express your opinion,
but we could not accept a political
statement as an advertisement. Our own
advertisement policy dictates so for good
reasons. If we were to accept a
politically aligned advertisement, we at
the Musket would feel obligated to accept
other political statements that might
come our way. We do not wish to put
ourselves in such position. Ultimately
Ad space is not a public forum and for
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that reason the Musket reserves the right
to select what Advertisements it chooses
to print. If you have any question feel
free to contact the Musket.
The decision was made, and the reply written, by
the student editors without consulting Kafrissen, the Musket
______
faculty advisor, or requesting his, or any other adult's,
approval. In fact, Kafrissen did not even know about the
ad's submission until the time of the editorial meeting, and
did not see the ad or the students' response until after the
reply had been sent.
Sometime the next week, Principal Wilson called
Kafrissen and informed him that Lexington's Town Counsel,
Norman Cohen, had been contacted by Yeo's lawyer; the lawyer
had threatened to sue the town and the school authorities if
the ad was not run. Cohen thought that it would be best to
avoid a lawsuit and requested that the students publish Yeo's
ad. Kafrissen and Wilson agreed to look into the legal
issues in greater depth and to discuss the matter with the
students. On March 1, 1994, the student editors of the
Musket met with Kafrissen. Kafrissen informed them of Yeo's
_______
actions. Although a number of students at the March 1
meeting supported Yeo's pro-abstinence views, they were
concerned that the Musket might turn into a bulletin board
______
for advocacy on lifestyle issues. Additionally, the students
were uncomfortable with having to run an ad because someone
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had threatened to sue them if they did not. The editors once
again decided to reject the ad. They asked Kafrissen to
contact Yeo and to invite him to present his views in a
"letter to the editor."
Kafrissen, on behalf of the Musket, wrote to Yeo
______
that day. In the letter, Kafrissen suggested that Yeo write
a letter to the editor:
We have long considered the Letters to
the Editor section of the Musket to be a
public forum. Historically we have
accepted and printed on these pages any
and all "short and tasteful" letters that
have come to us. We would welcome such a
letter from your organization in which
you would probably be able to explicate
your position on abstinence more fully
than you would be able to in an ad
format. We have heard that you feel that
school publications have prevented you
from presenting your message to the
student body. Therefore we suggest that
you use the medium of a letter to get
your message across in greater detail,
and without charge.
The letter concluded by noting that, if Yeo were successful
in forcing the Musket to print the ad, this would have the
______
negative consequence of removing editorial control from the
student staff.
Yeo declined the offer on March 7 in a letter to
Kafrissen. In that letter, Yeo explained that his
organization decided to sponsor the ads for two reasons:
Firstly, we had a simple message we
wanted to get out that would affirm
abstinent students in the LHS community.
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. . . There is nothing controversial or
political in our message. Secondly, I
wanted to see if the Musket and Yearbook
______
would react as I thought they would.
They did. In spades.
Accordingly, Yeo declined to write a letter to the editor,
which, he felt, could not make the point as concisely as an
ad could. Yeo insisted that the ad be run as submitted, "as
is our legal right," and concluded, "You don't have to agree
with it. You don't even have to like it. You just have to
print it. Touch ."
C. The Administration's Response and the Students' Decisions
_________________________________________________________
On March 1, Yeo met with Principal Wilson to
discuss the ads. Yeo believes that, at that meeting, Wilson
assured him that the ads would be printed, and told him that
the Town Attorney had advised publication.
Meanwhile, as the controversy heightened, the
students and faculty alike were seeking advice from various
sources. Mechem told Wilson that Dow-Chung Chi, the
Yearbook's co-editor-in-chief, had asked her: "If we don't
print the ad, what law are we breaking?" In an attempt to
answer his question, Mechem talked with Wilson, Kafrissen,
and the Student Press Law Center in Washington, D.C. Several
of the student editors of the Musket and the Yearbook sought
______
advice from the Student Press Law Center and the Civil
Liberties Union of Massachusetts, as well as from attorneys
they knew personally. The students were told by these
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various sources that, under the federal Constitution and
Massachusetts law, student editors had the right to decide
what was printed in their publications.
On March 11, 1994, LHS officials and student
editors met in the office of the Superintendent of Schools,
Jeffrey Young. Yearbook editors-in-chief Berger and Chi,
Musket editor-in-chief Chan, advisors Kafrissen and Mechem,
______
Superintendent Young and Principal Wilson attended. Young
asked questions to determine what the students' reasoning
was, and to determine that they had engaged in a thoughtful
process prior to the meeting. The administrators and faculty
were impressed with the way the students outlined the issues.
Young concluded by stating that he would like to do further
research and to obtain legal advice.
In mid-March, Musket editor-in-chief Chan was
______
approached by a group of students who were offended by Yeo's
efforts and who wished to place a "counter ad" in the Musket.
______
The proposed ad looked exactly like Yeo's ad except that, in
place of "Abstinence: The Healthy Choice," it read "Safe Sex:
The Healthy Choice." Chan decided to reject the counter-ad,
and informed the staff that it would not be published.
On March 13, Chan called a meeting of the entire
Musket staff; Kafrissen was not invited and did not attend.
______
At that meeting, Chan briefed the students on the events
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surrounding the submission of Yeo's ad. The student staff
unanimously opposed publication of Yeo's ad.
On March 18, a second meeting was held in
Superintendent Young's office. In addition to the prior
participants, Lexington School Committee members attended.
(LHS Assistant Principal Lawrence Robinson attended in
Principal Wilson's stead). The Musket and Yearbook editors
______
reiterated their refusal to run Yeo's ads. The school
officials and School Committee members warned the students of
the possible consequences of their decision, including
litigation, and described the potentially unpleasant media
exposure the students could expect. Although the students
felt that the school officials wanted them to print the ads,
the officials maintained that it was the students' decision
to make. The students were repeatedly advised that the
ultimate decision about publication of the advertisement was
theirs to make and the school administration would stand by
their decision.
Following the March 18th meeting, Chan held several
further discussions with individuals and groups from the
Musket's staff. Finally, with the staff's support, Chan
______
conclusively decided not to run Yeo's ad as a matter of
policy.
On April 11, 1994, the Superintendent again met
with the Musket staff and again told them the decision was
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theirs. Throughout Young's tenure as Superintendent, the
Musket has been operated as an independent student-run
newspaper and he has never authorized any school official to
interfere with the students' decision on what to publish.
Yeo offers no evidence to the contrary.
As for the Yearbook, Chi and Berger asked Mechem to
invite Yeo, on the students' behalf, to a meeting at which
alternatives could be discussed. Yeo wrote to Mechem on
March 28, informing her that, on the advice of counsel, he
would not be able to meet with the student editors, and
requesting that all further inquiries be addressed to his
lawyer at the Rutherford Institute in Virginia.
Berger then called a meeting of all the Yearbook
section editors. Mechem attended the beginning of the
meeting and urged the students to consider the school
officials' advice. Mechem then left the meeting. The
students discussed the issues raised at the March 18 meeting.
The students reaffirmed their decision to reject Yeo's ad.
Chi and Berger then drafted a memo to Superintendent Young
and the School Committee. It concluded:
After much discussion and deliberation,
the reasons for our decision are as
follows. The nature of the
advertisement, which promotes a style of
life, regardless of the message, does not
coincide with that of the rest of the
advertisement section of the yearbook.
The inclusion of this type of
advertisement would also establish an
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unsuitable precedent for the future of
the yearbook.
This litigation followed.
During the 1994-95 school year, the new student
editors of the Yearbook decided not to accept any
advertisements other than personal notes from parents and
students. Yeo resubmitted his ad in September 1994, but it
was rejected under the new policy. The 1994-95 Musket staff
______
drafted explicit "Advertisement Policies and Procedures," to
be distributed with advertisement forms, which states the
type of advertisements, including those from "political
organizations, referendum issues, advocacy groups, [and]
public service organizations,"that the Musket will not print.
______
The newspaper in its news pages gave extensive
coverage to the controversy between it and Yeo, thus
providing Yeo with coverage of his pro-abstinence position.
II. Procedural History
Yeo's action under 42 U.S.C. 1983 alleges that
the refusal of the two publications to print the
advertisements violated his rights to free speech and equal
protection under the U.S. Constitution and Art. 16 of the
Massachusetts Declaration of Rights. Yeo sued the Town,
School Committee, Superintendent, Principal, and faculty
advisers but did not name the students as defendants.
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The defendants moved for summary judgment on
various grounds, including, inter alia, the lack of state
action, that no public forum had been created, and qualified
immunity. Yeo opposed summary judgment, but did not submit a
statement of disputed facts in opposition to summary judgment
as required by Local Rule 56.1 of the District of
Massachusetts. Yeo conceded at his deposition that he had no
personal knowledge of the decision making processes followed
by the Yearbook and the newspaper in rejecting his
advertisement. The district court granted summary judgment
on the state action issue without reaching the other issues.
We affirm on the same ground.
III. State Action
The essential state action inquiry is whether the
government has been sufficiently involved in the challenged
actions that it can be deemed responsible for the plaintiff's
claimed injury.3 If there is no state action, then the court
____________________
3. The 'under color of law' requirement of 1983 "has
consistently been treated as the same thing as the 'state
action' required under the Fourteenth Amendment," United
______
States v. Price, 383 U.S. 787, 794 n. 7 (1966). Indeed, the
______ _____
Supreme Court has reversed an appellate court which treated
the two analyses as separate. Lugar v. Edmonson Oil Co., 457
_____ ________________
U.S. 922, 924, 928, 929 (1982). This court has consistently
treated the analyses as the same. See Barrios Velazquez v.
_________________
Asociacion de Empleados, 84 F.3d 487, 490-491 (1st Cir.
_________________________
1996). Where the statutory and constitutional inquiries are
inextricably intertwined, decision of the state action
question is hardly a breach of the obligation to decide cases
on statutory grounds in order to avoid constitutional
questions. We do not engage in a separate 1983 analysis,
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may not impose constitutional obligations on (and thus
restrict the freedom of) private actors.4
This is a situation in which the government actors
-- the school officials acting under a statute5 of the
____________________
nor do we reach the issue of municipal liability, under
Monell v. Department of Social Services, 436 U.S. 658 (1978),
______ _____________________________
or of qualified immunity claimed by the individual
defendants. The district court ruling did not reach any of
these issues. Judge Stahl's concurrence suggests that we
leap over the question of state action to address a statutory
issue of causation, an unusual approach. The question
whether Yeo even has a First Amendment right to assert
depends on whether there is state action. The Supreme Court
and the circuit court cases described above have consistently
addressed the state action question before addressing
questions of causation. See also Polk County v. Dodson, 454
________ ___________ ______
U.S. 312, 325 (1981) (examining 1983 defense of no
municipal custom only after examining state action issue).
Further, courts ordinarily address questions of jurisdiction
first, and the presence of state action is "a jurisdictional
requisite for a 1983 action." Id. at 313.
___
4. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S.
_________ ________ ______________________
614, 619-20 (1991) (discussing the relevance of the "state
action" requirement to private freedom).
5. Mass. Gen. Laws ch. 71 82 provides, in pertinent part:
The right of students to freedom of
expression in the public schools of the
commonwealth shall not be abridged,
provided that such right shall not cause
any disruption or disorder within the
school. Freedom of expression shall
include without limitation, the rights
and responsibilities of students,
collectively and individually, . . . to
write, publish and disseminate their
views . . . . No expression made by
students in the exercise of such rights
shall be deemed to be an expression of
school policy and no school officials
shall be held responsible in any civil or
criminal action for any expression made
or published by the students.
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Commonwealth of Massachusetts -- have chosen to grant
editorial autonomy to these high school students. The state
action analysis is thus placed squarely in a very complex and
changing area of law.
The modern state action decisions of the Supreme
Court do not rely on a single analytic model applied
regardless of the fact patterns involved. As this Court once
observed, the "state action inquiry is 'necessarily fact-
bound.'" Ponce v. Basketball Federation of the Commonwealth
_____ _________________________________________
of Puerto Rico, 760 F.2d 375, 377 (1st Cir. 1985) (quoting
_______________
Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)). The
_____ _________________
analytic model used must take account of the specific
constitutional claim being asserted, here, one under the
First Amendment.6 Cf. Polk County v. Dodson, 454 U.S. 312
___ ____________ ______
(1981) (state action inquiry shifts depending on
____________________
Mass. Gen. Laws ch. 71, 82; see also Pyle v. School Comm.,
________ ____ ____________
667 N.E.2d 869 (Mass. 1996) (holding that the statute
protects even vulgar speech so long as no disruption or
disorder results). We express no view on whether state law
would have permitted the school to override the students'
decisions. As we explain, the state's student speech law may
be a factor in the state action inquiry, but the issue for us
is ultimately one of federal constitutional law.
6. The "search for state action . . . ends by identifying
the precise substantive constitutional issue to be
addressed." Tribe, American Constitutional Law 18-6, at
____________________________
1715 (2d ed. 1988). See also 1 Nahmod, Civil Rights and
_________ _________________
Civil Liberties Litigation: The Law of Section 1983 2.04,
_____________________________________________________
at 63 (3d ed. 1991)("[S]tate action is not a unitary concept,
but varies depending on the constitutional violation
asserted.").
-22-
constitutional question asked). "Faithful adherence to the
'state action' requirement . . . requires careful attention
to the gravamen of the plaintiff's complaint." Blum v.
____
Yaretsky, 457 U.S. 991, 1002 (1982). As the Supreme Court
________
has noted:
We recognize that the First Amendment,
the terms of which apply to governmental
acts ordinarily does not itself throw
into constitutional doubt the decisions
of private citizens to permit, or to
restrict, speech -- and this is so
ordinarily even where those decisions
take place within the framework of a
regulatory regime . . . .
Denver Area Telecomm. Consortium, Inc. v. Federal
______________________________________________ _______
Communications Comm'n, 116 S. Ct. 2374, 2383 (1996).
_____________________
The state action issue implicates a myriad of
players, only some of whom are defendants. Yeo sued only
those individuals who are public school administrators,
teachers, or members of the Lexington School Committee. They
are concededly state actors. He did not sue the student
editors. But the "action" of which Yeo complains was an
action taken by the students. The "actions" he assails were
the editorial judgments not to publish his advertisement.
Those judgments were made by the students, who are not
parties.
There are expressive interests involved on both
sides of this case. Yeo's are obvious. Those on the other
-23-
side are perhaps less obvious. The identification of these
interests puts the state action question in context.
If the actions by the students are themselves state
action or may be attributed to the school officials and
provide the basis for state action, the inevitable legal
consequence will be some level of judicial scrutiny of the
students' editorial judgments.7 The inevitable practical
consequence will be greater official control of the students'
editorial judgments. Both consequences implicate the
students' First Amendment interests, which are far from
negligible. Cf. Hazelwood Sch. District v. Kuhlmeier, 484
___ ________________________ _________
U.S. 260 (1988) (acknowledging but ruling against student
speech interests when school officials overrode students'
editorial judgments and withdrew certain material from pages
of high school newspaper); Miami Herald Publishing Co. v.
____________________________
Tornillo, 418 U.S. 241, 252 (1974) ("[I]mplementation of a
________
remedy such as [government] enforced access" to pages of a
private newspaper "brings about a confrontation with the
express provisions of the First Amendment and the judicial
gloss on that Amendment developed over the years.").
____________________
7. We do not accept the suggestion of Judge Stahl's
concurrence that the students are private actors with respect
to reporting and editorializing and that they are not with
respect to the advertising decisions. Whatever role such a
distinction may play in a limited public forum analysis, the
distinction offers little assistance here.
-24-
In addition, the defendant school officials
themselves have an interest in their autonomy to make
educational decisions. The officials have determined that
the best way to teach journalism skills is to respect in the
students' editorial judgments a degree of autonomy similar to
that exercised by professional journalists. That choice by
the officials parallels the allocation of responsibility for
editorial judgments made by the First Amendment itself. The
Supreme Court has "oft expressed [the] view that the
education of the Nation's youth is primarily the
responsibility of parents, teachers, and state and local
school officials, and not of federal judges." Hazelwood, 484
_________
U.S. at 272.
The leading Supreme Court decisions concerning high
schools and students are all meaningfully different from this
case, and thus provide little guidance on the state action
question. Each of those cases involved a claim by students
that the actions of public school administrators violated
their constitutional rights. For example, in Hazelwood,
_________
plaintiff students contended that officials violated the
First Amendment by deleting articles from student newspaper.
State action was simply not at issue in Hazelwood because the
_________
-25-
relevant actions were admittedly taken by public school
officials.8 Id., 484 U.S. at 264. The same is true of
___
earlier decisions, all of which involve student claims
against those running the schools. Bethel Sch. Dist. v.
__________________
Fraser, 478 U.S. 675 (1986)(civil rights claim by student
______
disciplined by officials for language used in school
assembly); Tinker v. Des Moines Indep. Sch. Dist., 393 U.S.
______ ____________________________
503 (1969)(student claim that principals' regulation against
armbands violated First Amendment); see also Vernonia Sch.
___ ____ _____________
Dist. v. Acton, 515 U.S. 646 (1995)(student Fourth Amendment
_____ _____
claim against school district). Here, in contrast, the
question is whether the actions by students may fairly lead
________
to a conclusion there is state action.
Each court of appeals which has considered the
state action requirement in the context of attempts to
attribute student-controlled editorial decisions in public
institutions of higher education to public officials has
found no state action. In Leeds v. Meltz, 85 F.3d 51 (2d
_____ _____
Cir. 1996), the court found no state action where school
____________________
8. Thus, when the Supreme Court in Hazelwood discusses
_________
whether "school-sponsored publications that students,
parents, and members of the public might reasonably perceive
to bear the imprimatur of the school," 484 U.S. at 271, that
discussion was pertinent to whether there was an intent to
create a public forum. Hazelwood did not create a new state
_________
action analysis that any school sponsored activity which
bears an imprimatur of the school thus constitutes state
action.
-26-
officials and students were sued over the decision by student
editors of a newspaper in a state supported law school to
reject an ad. See id. at 55. In Sinn v. The Daily
___ ___ ____ __________
Nebraskan, 829 F.2d 662, 665 (8th Cir. 1987), the court held
_________
that there was no state action in the refusal to print an ad
where the student paper "maintains its editorial freedom from
the state." In Mississippi Gay Alliance v. Goudelock, 536
________________________ _________
F.2d 1073, 1075 (5th Cir. 1976), a similar result was reached
in a suit against the newspaper editor where the students
elected the editor and university officials did not control
or supervise editorial judgment about what to publish. In
Avins v. Rutgers, 385 F.2d 151, 153-54 (3d Cir. 1967),
_____ _______
without expressly discussing the state action issue, the
court held that a state-supported law review's rejection of
an article did not violate the First Amendment because
editorial discretion is a necessary component of publishing a
journal. Yeo argues that cases involving public universities
are not on point, given the state's potentially greater role
in controlling the behavior of younger, high school students.
But it is also true that the autonomy given to these high
school students renders them more like their older
counterparts and renders those cases highly relevant.
The only decisions we have found which assume there
is state action do so where the parties agreed there was
state action and it was undeniable the decision makers were
-27-
government officials. The decision by the Ninth Circuit in
Planned Parenthood of Southern Nevada Inc. v. Clark County
____________________________________________ ____________
School District, 941 F.2d 817 (9th Cir. 1991), is inapposite
_______________
as state action was conceded. There the school officials
themselves controlled the school publications and decided to
reject the advertisement from the plaintiff organization.
Id. at 820. Likewise, in Lee v. Board of Regents, 441 F.2d
__ ___ ________________
1257 (7th Cir. 1971), state action was conceded where the
student newspaper was a "state facility".
While all parties appropriately point us toward the
state action analysis in Rendell-Baker v. Kohn, 457 U.S. 830
_____________ ____
(1982), that case is rather the mirror of this. Rendell-
________
Baker involved a claim that private school officials were
_____
state actors. Here the claim is that public school officials
may be sued based on the actions of students. The students
are themselves at least facially private actors.
The theories for (and against) state action
basically devolve here into three categories of analysis.
First, is there state action because the decisions not to
publish were actually made by or controlled by the school
officials? (Even if the decisions were not directly made by
the school officials, those officials, Yeo argues, exerted
such influence as effectively to determine the outcome of the
student decisions.) This is primarily a factual question.
-28-
Second, even if the state did not actively direct
or control the decisions, was the state required to
intervene, and to do so in such a way as to provide a basis
for a state action finding? This is primarily an issue of
law.
Third, even if the decisions were made
independently by the students, may the decisions of the
students fairly be attributable to the school officials
because of the public school setting? The material facts are
undisputed; the question is what conclusion to draw from
these facts. We take each argument in turn.
A.
Yeo argues that the decisions were made or
controlled in fact by the school officials, but the record
does not support that conclusion.9 The students and each of
____________________
9. Yeo calls our attention to the fact that the advisors
authored some of the correspondence, using the term "we," and
to the fact that, on a separate occasion, Kafrissen
threatened to resign if the students did not take his advice.
It is true that Kafrissen and Mechem used the word "we" in
letters to Yeo. However, the letter from Kafrissen was
written after Dong Shen had already communicated the
_____
students' rejection of the ad to Yeo. As for Mechem's
correspondence, Mechem and the Yearbook editor both stated
unequivocally that the decision was made by the students
prior to consultation with Mechem, and that Mechem wrote to
Yeo at the student editors' request. As to Kafrissen's
threat to resign, the incident only serves to illustrate that
Kafrissen did not believe he had the authority to order the
students around. His actual description of the incident is
as follows:
-29-
the involved school officials say that the students, and not
the school officials, made the decision. Yeo has offered
nothing to contradict that.
Nonetheless, the state action cases recognize that
government should not be shielded when it is the real actor
behind the scenes or when it joins in a charade designed to
evade constitutional prohibitions. See Terry v. Adams, 345
___ _____ _____
U.S. 461 (1953)(Democratic Party "club" was a state actor
designed to evade constitutional prohibition against all-
white primaries); cf. Morse v. Republican Party of Virginia,
___ _____ ____________________________
116 S. Ct. 1186 (1996). That is not true here. This is also
not an instance in which the government knowingly profits
from the racially discriminatory behavior of a privately
____________________
I have never ordered (nor do I have the authority
to order) the student editors not to run an
editorial, news or feature article or any
advertisement. I have used persuasion to address
matters that seemed over-the-line. On one
occasion, for example, when I disagreed strongly
with a proposed student editorial, which, in my
opinion, took an extremely irresponsible position,
I was prepared to resign if my advice to withdraw
the editorial was not accepted. The editors
engaged in an extensive debate and consulted with
their parents before finally agreeing to withdraw
the editorial.
There is nothing in the record even to suggest that Kafrissen
engaged in such persuasive techniques with regard to the Yeo
ad; rather, the uncontradicted evidence is that Kafrissen
took prophylactic measures to ensure that the students felt
free to make their own decision. At bottom, Yeo's claim of
control amount to no more than "conclusory allegations,
improbable inferences, and unsupported allegations." Fennell
_______
v. First Step Designs, Ltd., 83 F.3d 526, 536 (1st Cir. 1996)
________________________
(citations and internal quotation marks omitted).
-30-
owned enterprise. See, e.g., Burton v. Wilmington Parking
___ _____ ______ __________________
Auth., 365 U.S. 715 (1961); Blum, 467 U.S. at 1010-11. That
_____ ____
type of symbiotic relationship has been found to create state
action where the government tacitly endorses and becomes
entangled with private racial discrimination. Burton, 365
______
U.S. at 724. Even if that race discrimination model for
state action were imported here, there is no evidence the
school officials tacitly endorsed or benefitted from the
students' decisions not to run Yeo's ads.
The state action cases also consider "de-
privatizing" and attributing to the government the actions of
private persons where the state has been involved in the
sense of delegating traditional governmental authority to a
private actor.10 In Edmonson, a private litigant's race-
________
based exercise of peremptory challenges was found to be state
action. Edmonson, 500 U.S. at 621. The running of trials is
________
a government function and it is the judge who, based on the
challenge, excuses the juror. The publishing of a newspaper
or a yearbook is most emphatically not a traditional function
____________________
10. The school officials point to NCAA v. Tarkanian, 488
____ _________
U.S. 179 (1988), where an unincorporated association of
public and private colleges was found not to be a state actor
even though the association's actions led a public college to
take disciplinary action against a basketball coach. But in
this case the state actors, the adults, have a supervisory
relationship to the private group, the students, and are thus
somewhat the inverse of the NCAA and the public college.
-31-
nor an exclusive prerogative of the government in this
country. Private schools commonly have student newspapers,
and public schools not uncommonly have independent student
newspapers. The delegation of governmental function theory
does not establish state action. See Flagg Bros., Inc. v.
___ __________________
Brooks, 436 U.S. 149 (1978) (sale of goods in storage by
______
warehouseman did not constitute state action); Jackson v.
_______
Metropolitan Edison Co., 419 U.S. 345 (1974) (private utility
_______________________
which terminated electric service was not state actor).
B.
Secondly, while there may be rare occasions when a
state has a duty to intervene in actions taken by private
persons which could give rise to a state action finding, this
is not one.11 See Ponce, 760 F.2d at 379-80 (although there
___ _____
may be some occasions in which "[t]he government should be
responsible for failing to act where it should act," there
was no state action because the government had no affirmative
duty to regulate amateur sports leagues). Cf. DeShaney v.
___ ________
Winnebago County Dep't of Social Services, 489 U.S. 189
_____________________________________________
(1989) (finding that the Due Process Clause imposes no
affirmative duty on the government to protect citizens from
deprivation of life, liberty or property by private actors).
____________________
11. For example, state officials could not personally stand
by and watch privately-contracted-for prison guards beat a
prisoner to death, and then defend on the ground of no state
action.
-32-
Here, the state statute, Mass. Gen. Laws ch. 71, 82,
appears to have been intended, in part, to express
Massachusetts' policy judgment that student editors of high
school publications generally have editorial autonomy from
school officials and that their decisions are not state
action. While the state statute cannot be determinative of
the outcome of the federal constitutional question, Lebron v.
______
National R.R. Passenger Corp., 115 S. Ct. 961, 971 (1995)
_______________________________
(statutory declaration that Amtrak is not a government entity
not dispositive of governmental action question where
constitutional rights are involved), no such duty to act is
imposed by state law.
The First Amendment free speech and free press
guarantees do not involve a duty by the government to act
where there is otherwise no state action. Indeed, those
guarantees are largely based on prohibitions against
government action.12 "The First Amendment does not reach
acts of private parties in every instance where the
[government] has merely permitted or failed to prohibit such
acts." CBS v. Democratic Nat'l Comm., 412 U.S. 94, 119
___ _______________________
(1973) (plurality opinion). In CBS, a plurality of the
___
____________________
12. The state action question also cannot be resolved
against Yeo on the grounds that the Constitution prohibits
the state actors, the school administrators, from acting to
interfere with the student editors. Hazelwood forecloses
_________
such a conclusion.
-33-
Supreme Court found that the decisions of broadcasters not
to accept any editorial advertising were not government
action for purposes of the First Amendment, even though the
government both licensed and heavily regulated the
broadcasters. Id. at 116-19. As a matter of law, we see no
___
legal duty here on the part of school administrators to
control the content of the editorial judgments of student
editors of publications. Such a duty -- which Yeo in his
briefing suggested could be derived from the traditional
government function of running schools and the "symbiotic
relationship" between the publications and the school -- does
not exist and cannot support state action.
C.
We are left with the third theory: that the
actions by the students should be attributed to the school
officials, despite the officials' lack of actual or effective
control and the lack of any duty. The key issue is whether
the conduct may be "fairly attributable to the state."
Barrios v. AEELA, 84 F.3d 487, 491 (1st Cir. 1996) (citations
_______ _____
and internal quotation marks omitted) (no state action where
state did not compel organization of governmental employees
of Puerto Rico to act, no traditional government function
involved, and no interdependence and joint participation with
state is shown).
-34-
Of course, the fact that the newspaper editors are
public school students does not, in itself, make them state
actors. Persons do not become state actors because they are
clients of government services, whether they are students,
hospital patients, or prison inmates. Some, like the
students, are government clients by compulsion -- here, the
truancy and mandatory education laws compel the students'
attendance.13 They may not be converted to the status of
government actors simply on such a basis.
Yeo argues, using the Rendell-Baker terminology,
_____________
that there is a sufficient nexus to attribute the students'
actions to the state. But examining the nexus here between
state regulation and financial support of the publications
and the challenged decisions militates against a state action
finding. See Blum v. Yaretsky, 457 U.S. at 1004; Rendell-
___ ____ ________ ________
Baker, 457 U.S. at 838-41. It is established that a private
_____
institution's receipt of state funding does not render that
institution's decisions state action. Rendell-Baker, 457
_____________
U.S. at 840. This can be so even when the institution's
budget is almost entirely derived from public money. Id.
__
Here, the publications are the institutions at issue.
____________________
13. We distinguish those 1983 cases where the plaintiff is
himself a compulsory client of the government, such as is
true in suits by persons in custodial care of the state, and
sues otherwise private actors who provide services under
contract with the state. See West v. Atkins, 487 U.S. 42
___ ____ ______
(1988); Miranda v. Munoz, 770 F.2d 255 (1st Cir. 1985).
_______ _____
-35-
The Yearbook receives no money from the school
system other than the indirect assistance it gets from the
small stipend received by its faculty advisor. The Musket
______
does receive greater financial assistance. Much of its
operating costs as well as its advisor's stipend are paid by
the school system. However, these facts are far from
conclusive. The focus in Rendell-Baker was on the interplay
_____________
between the action at issue and the state funding and
regulation, not merely on the amount of state aid or
oversight. Id. There was no interplay between the decision
___
not to publish the advertisement and the state's provision of
financial and faculty support. That the principal kept the
checkbook for the school newspaper had nothing to do with the
students' decisions whether or not to run the ads.
Yeo's "nexus" argument turns on context. The
Yearbook does memorialize in photographs the experiences and
personalities in a public high school class. The newspaper
is the newspaper of the public high school; its name is the
"Lexington High School Musket" and it identifies itself with
_____________________________
the high school in its communications and interactions with
other students and the community. It does receive some
financial support from the school and the faculty advisors
may have some subtle influence. The newspaper exists in the
form it does because the school authorities and state law
permit it to do so. While not part of the for-credit
-36-
educational curriculum, work on the Musket does have explicit
______
educational value and provides an attractive credential for
students. The student editors perform some of their
functions on school grounds, perhaps even during school
hours. All of these factors support Yeo's argument. It is a
close question whether the injury caused here "is aggravated
in a unique way by the incidents of government authority."
Edmonson, 500 U.S. at 622 (citation omitted).14
________
The Supreme Court has taught that the state action
question may shift depending on the context and the question
asked. A public defender is not a state actor in her
representation of a criminal defendant, even though she may
be one in the performance of other duties, such as hiring or
firing decisions. See Polk County, 454 U.S. at 324-25. Even
___ ___________
acknowledging that the public defender is a state employee,
Polk County considered it important that, in the actual
____________
function of defending the client, the public defender's
relationship to the state was necessarily independent, and
even adversarial, and that the defender exercised independent
____________________
14. Cf. Marjorie Heins, Viewpoint Discrimination, 24
__ __________________________
Hastings Const. L.Q. 99, 159 (1996)("Public education
presents a paradoxical situation: it is government speech for
some purposes, yet also a quintessential forum for
intellectual growth [and] exploration. . . .")
-37-
judgment in the same manner as did attorneys in the private
sector. Id. at 321-22. So too here.15
___
Here, the students' relationship to the public
school officials in the exercise of their editorial judgment
was certainly independent. At times, it was close to
adversarial. The school officials gained nothing but a
lawsuit from the students' decision, and the officials might
themselves, as they told the students, have made a different
decision. It is not enough to create state action that the
decisions took place in a public school setting, that there
was some governmental funding of the publication, that
teachers were acting as advisors, and that the state actors
made an educational judgment to respect the autonomy of the
students' editorial judgment.
Where, as here, there are First Amendment interests
on both sides of the case, the analysis of whether there is
____________________
15. Similarly, in Edmonson, not all of the litigation
________
decisions of the defendant private company were deemed to be
state action; only the race-based exercise of peremptory
challenges were. See Edmonson, 500 U.S. at 621-22. This
___ ________
was, in part, because "[r]acial bias mars the integrity of
the judicial system and prevents the idea of democratic
government from becoming a reality." Id. at 628. Where such
___
interests are at stake, the acquiescence of a government
actor in the discriminatory actions of a private party may
implicate the Constitution. For example, if this were a
claim brought by a student who had been excluded from
election to the editorial board on account of her race, and
the school officials declined to intervene, the analysis
would focus on a different decision and most likely would
reach a different result.
-38-
state action must proceed with care and caution. Because the
record establishes that the editorial judgment exercised was
the independent judgment of the student editors of both
publications, we resolve the question of state action against
Yeo.
The decision of the district court is affirmed.16
Costs are awarded to the Town of Lexington and the defendant
school officials.
Concurrences follow.
____________________
16. The motion to strike filed by Yeo in this court is
denied as immaterial and moot in light of the court's
opinion.
-39-
TORRUELLA, Chief Judge (Concurring). I concur with
TORRUELLA, Chief Judge (Concurring).
___________
the majority opinion but write separately to highlight an
important issue that the majority fails to address -- the
absence of a public forum.
The regulation of speech in forums that have
traditionally been available for public expression is subject
to the highest degree of scrutiny. See Perry Educ. Ass'n v.
___ __________________
Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). These
____________________________
"traditional public forums" include streets, sidewalks and
parks. Id. In order to further aid citizens' political
___
discourse, the state may, from time to time, create a new
public forum for the views of the community. The regulation
of speech in these "designated" public forums is also subject
to strict scrutiny. See id. at 46. However, it is simply
___ ___
not true, as a matter of constitutional law, that each time a
state actor solicits advertising, a designated public forum
has been created by the government. See Lehman v. City of
___ ______ _______
Shaker Heights, 418 U.S. 298 (1974) (city may solicit
_______________
advertising for its rapid transit cars while refusing
political and public issue advertising).
The Supreme Court has held that "[t]he government
does not create a public forum by inaction or by permitting
limited discourse, but only by intentionally opening a
_____________
nontraditional forum for public discourse." Cornelius v.
_________
NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802
_________________________________________
-40-
(1985) (emphasis added); see also International Soc'y for
_________ ________________________
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992)
___________________________ ___
(when the government opens a forum for certain types of
speech, a public forum has not been created unless the
government intended to create a forum without limitations);
________
United States v. Kokinda, 497 U.S. 720, 730 (1990) (plurality
_____________ _______
opinion) (same); Perry, 460 U.S. at 48 (same). Therefore,
_____
when school newspapers and yearbooks publish advertising
alongside student articles and pictures, it cannot be said
that editors are necessarily intending to open a forum for
all public discourse.
This Circuit has observed that "in determining
whether the government qua proprietor has designated public
______________
property to be a public forum, courts should be highly
deferential to the government's decisions to regulate speech"
where those decisions do not evidence viewpoint
discrimination. AIDS Action Committee of Mass. v. MBTA, 42
_______________________________ ____
F.3d 1, 9 (1st Cir. 1994). It follows that the mere absence
of a prior written policy against political and public issue
advertising should not preclude the Musket from adopting such
a policy when the need to do so becomes apparent, so long as
the paper has not established a practice of publishing such
material. See Cornelius, 473 U.S. at 802 (government's
___ _________
intent regarding a forum for speech must be gleaned from
policy and practice); Grace Bible Fellowship, Inc. v. Maine
____________________________ _____
-41-
School Admin. Dist. No. 5, 941 F.2d 45, 47 (1st Cir. 1991)
__________________________
(same). In this case, the Musket had not published political
or public issue advertising in the past, and Yeo's request
did not obligate the paper to begin publishing such material.
When the state solicits advertising for a
nontraditional public forum, it is permitted to filter out
pure political speech. See Lehman, 418 U.S. at 303-04.
___ ______
Disallowing this filter would shut down potentially robust
activities, including many school newspapers, inhibiting the
marketplace of ideas protected by the First Amendment. See
___
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)
_________ __________________
(recognizing that schools are important loci of the
"marketplace of ideas" protected by the First Amendment).
While it is true that "[t]he line between ideological and
nonideological speech is impossible to draw with accuracy,"
Lehman, 418 U.S. at 319 (1974) (Brennan, J., dissenting),
______
there is no such line-drawing problem in this case. For this
additional reason, the district court must be reversed.
-42-
Stahl, Circuit Judge, concurring in the judgment.
Stahl, Circuit Judge, concurring in the judgment.
______________
Though I remain persuaded that, on the facts of this case,
the student editors were public actors acting under color of
state law, further examination of the record during en banc
__ ____
review leads me to conclude that this issue is not material
to our decision and that the district court properly entered
judgment in favor of defendants. I write separately for two
reasons. First, because this case is easily resolved on
statutory grounds -- lack of evidence from which a factfinder
--
could conclude that the defendants "caused" the
constitutional violation complained of -- I believe the
--
majority's central state action ruling to be an unfortunate
breach of the "fundamental rule of judicial restraint . . .
that [courts] will not reach constitutional questions in
advance of the necessity of deciding them." Three Affiliated
________________
Tribes v. Wold Engineering, P.C., 467 U.S. 138, 157 (1984).
______ _______________________
Second, I believe the majority's unnecessary constitutional
ruling to be wrong on the merits.
I.
Defendants cannot be liable to plaintiff for
damages unless, among other things, they subjected plaintiff
to, or caused plaintiff to be subjected to, a deprivation of
federal rights. See 42 U.S.C. 1983. Because the Supreme
___
Court has made it clear that 1983's causation language is
to be narrowly construed, see Monell v. New York City Dep't
___ ______ ___________________
-43-
of Social Servs., 436 U.S. 658, 691-94 (1978) (interpreting
________________
the language of 1983 to preclude the imposition of
vicarious liability), the question here quickly reduces to
whether one or more defendants can, at the least, be seen as
having caused the rejection of the advertisements within the
narrow meaning of the statute. See id. As the majority
___ ___
notes, plaintiff has not named as defendants those persons --
the student editors of the newspaper and yearbook -- who may
most readily be seen as having directly subjected him to the
alleged deprivation of his First Amendment and equal
protection rights. Nor has plaintiff argued that the acts
and omissions for which the named defendants may most readily
be seen as responsible -- delegating decision-making
authority to the students and failing to override the
students' decisions -- caused him to be subjected to
constitutional harm. See, e.g., Febus-Rodriguez v.
___ ____ _______________
Betancourt-Lebon, 14 F.3d 87, 91-92 & n.4 (1st Cir. 1994)
________________
(discussing this circuit's standard for establishing
supervisory liability under 1983). As a result, no trial
is warranted unless there is a genuine issue of material fact
as to whether (1) at least one individual defendant actually
colluded with the students in the decisions to reject the
advertisements; or (2) the rejection was pursuant to a policy
or custom of the Town of Lexington. See, e.g., Board of
___ ____ ________
County Commissioners v. Brown, 117 S. Ct. 1382, 1388 (1997)
____________________ _____
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(reiterating that, for purposes of 1983, a municipality
causes one to be subjected to a deprivation of federal rights
only through its duly-enacted policies or widespread customs
having the force of law). In my view, there is insufficient
evidence to warrant a trial against any of the named
defendants under either of these theories.
Though I continue to disagree with the majority's
conclusion that defendants Kafrissen and Mechem did not
influence the students' decisions to reject the
advertisements, I now concur that the summary judgment record
permits only one inference: the students made the ultimate
decisions. In the end, I am constrained to agree that, in
the face of largely uncontradicted testimony to contrary
effect, Kafrissen and Mechem's use of the term "we" in
message-relaying correspondence with plaintiff, and
Kafrissen's prior threat to resign, see ante at 27 n.8, do
___ ____
not allow a determination that defendants Kafrissen or Mechem
can be held liable for the decisions made. And with respect
to the other individually-named defendants, so also do I
agree that there is no basis for concluding that they
participated in the rejections of the advertisements. Thus,
there is insufficient evidence of statutory causation for
plaintiff to proceed to trial against any of the individual
defendants.
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With respect to the Town, I agree with the
majority's conclusion that there is no basis for attributing
to it the conduct of the students. See ante Part III,
___ ____
Sections A and C. I take issue, though, with the method by
which the majority reaches its conclusion. Specifically, I
disagree with its direct (though reverse) application to this
case of those Supreme Court state action cases which look for
state action in private conduct. See generally id.
_______ ___ _________ ___
(applying, in order, Terry v. Adams, 345 U.S. 461 (1953);
_____ _____
Morse v. Republican Party of Virginia, 116 S. Ct. 1186
_____ ______________________________
(1996); Burton v. Wilmington Parking Auth., 365 U.S. 715
______ _________________________
(1961); Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978);
__________________ ______
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974);
_______ _________________________
Rendell-Baker v. Kohn, 457 U.S. 830 (1982); and Edmonson v.
_____________ ____ ________
Leesville Concrete Co., Inc., 500 U.S. 614 (1991), to
_______________________________
determine that the defendants to this lawsuit, all of whom
are public actors, are not liable for the students' conduct).
While these cases might, by analogy, shed light on what will
not be considered constitutionally tortious municipal conduct
___
under 1983, see, e.g., Rendell-Baker, 457 U.S. at 840-41
___ ____ _____________
(strongly supporting an argument that neither municipal
funding nor municipal regulation of a private entity
constitutes municipal "policy" for purposes of 1983), not
one of them speaks to the question directly posed here: can
conduct by non-legislative and non-policy making actors be
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deemed to have been sufficiently caused by municipal policy
or custom for liability to attach to the Town? Nor does any
__ ___ ____
one of these cases involve harm-causing conduct which can be
seen as having been committed by public actors. For these
______
reasons, I fear that the majority opinion confuses more than
it clarifies.
Moreover, the majority has entered an area it could
and should avoid. The Town's freedom from liability flows
less from the fact (if it be fact, see infra Part II) that
___ _____
the students are private actors than from the fact that the
students' actions were not caused by Town policy or custom.
Again, plaintiff has not advanced as a theory of liability
the Town's decision to let the students decide -- the only
municipal policy or custom which can arguably be seen at play
here. And even if plaintiff had so argued, it seems obvious
that, as an action taken in what appears to have been good
faith reliance upon state law, see Mass. Gen. L. c. 71, 82,
___
this policy cannot give rise to municipal liability under
1983. See Surplus Store & Exchange, Inc. v. City of Delphi,
___ ______________________________ ______________
928 F.2d 788, 791-92 (7th Cir. 1991).
In the end, defendants are entitled to judgment
because they did not, under 1983, ultimately cause the
conduct of the non-party students. We should not go beyond
this simple fact to decide the case.
II.
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By resolving this dispute through application of
those cases which look for state action in private conduct,
the majority proceeds from the premise that the students were
private actors. I not only find this implicit holding to be
unnecessary, I believe it to be incorrect on the merits. In
my view, had plaintiff sued the student editors directly, we
would have been obliged to rule that they were, in fact,
public actors insofar as they solicited and published
advertisements from paying third parties.
Whether a person or entity is a private or a public
actor obviously cannot be resolved through application of
cases which presume that the actor is private; it is resolved
by a fact-specific inquiry into whether the person or entity
is, in context, acting "under color of state law." See Polk
___ ____
County v. Dodson, 454 U.S. 312, 322 n.12 (1981) (noting the
______ ______
distinction). Although the Supreme Court has sometimes
stated that the state action and under color of state law
questions are coextensive, see, e.g., United States v. Price,
___ ____ _____________ _____
383 U.S. 787, 794 and n.7 (1966), it also has recognized that
they are not invariably the same. That the inquiries
sometimes diverge is clear in Dodson where, without reference
______
to a single state action case, the Court concluded that a
state public defender does not act under color of state law
while acting as counsel to an indigent defendant in a state
criminal proceeding. 454 U.S. at 320-24.
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Here, as in Dodson, the question (had plaintiff
______
raised it) would not have been whether private conduct should
be attributed to the Town; rather, it would have been whether
the conduct was, as an initial matter, public or private.
Cf. Blum v. Yaretsky, 457 U.S 991, 1003-4 (1982) (contrasting
___ ____ ________
"those cases in which the defendant is a private party and
the question is whether his conduct has sufficiently received
the imprimatur of the State so at to make it 'state' action
for purposes of the Fourteenth Amendment" with "cases in
which the challenged conduct consists of enforcement of state
laws or regulations by state officials who are themselves
parties in the lawsuit"). And the state action tests the
majority relies upon, designed as they are to determine
whether private conduct is attributable to the state, would
not have helped answer the question.
To illustrate, when an on-duty municipal police
officer misuses the power of the office to carry out a
personal vendetta, we do not decide whether he was acting
under color of state law by reference to whether the
municipality is itself liable for the conduct. See, e.g.,
___ ____
Martinez v. Colon, 54 F.3d 980 (1st Cir.), cert. denied, 116
________ _____ _____ ______
S. Ct. 515 (1995). We decide it on a more contextually-
appropriate inquiry into whether the officer has "exercised
power 'possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
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state law.'" Id. at 986 (quoting West v. Atkins, 487 U.S.
___ ____ ______
42, 49 (1988)). So here should we decide whether the
students are public or private actors by reference to
criteria other than those we would use to decide whether the
Town must pay for the students' acts.
What criteria should be used? A helpful starting
point is Dodson, where the Court's ruling was informed by two
______
primary considerations: (1) "a public defender is not
amenable to administrative direction in the same sense as
other employees of the State," 454 U.S. at 321; and (2) "it
is the constitutional obligation of the State to respect the
professional independence of the public defenders whom it
engages," id. at 321-22. Here, both factors militate in
__
favor of finding that, insofar as they solicited and
published (or declined to publish) advertisements from paying
third parties, the students acted under color of state law.
Certainly, the power of school officials to regulate the
content of student publications and the acts of their student
editors, see Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
___ ____________________ _________
266-70 (1988), is near its apex where the subject of the
regulation involves the students' commercial interactions
with third parties. And where these interactions arguably
implicate the constitutional rights of those third parties,
cf. Dodson, 454 U.S. at 321-22, and hold out the prospect of
___ ______
monetary benefit to the Town, see, e.g., Burton, 365 U.S. at
___ ____ ______
-50-
724 (indicating that conduct which leads to monetary benefits
for the State will often be deemed action on behalf of the
State), the question is less whether the students may be
regulated and more whether the students must be regulated.
My position is narrow. I have never doubted that
the student writers are private actors with respect to
reporting and editorializing. A contrary holding would,
after all, effectively spell the end of public school student
publications; one would be hard-pressed to report and could
never editorialize without violating the First Amendment's
mandate of viewpoint neutrality. See generally R.A.V. v.
___ _________ ______
City of St. Paul, 504 U.S. 377 (1992). I only suggest that,
________________
to the extent public school students solicit funds to support
a public enterprise in their capacities as officials of that
enterprise, they act under color of state law. See Dodson,
___ ______
454 U.S. at 324-25 (making clear that an actor can act under
color of state law in one capacity but not in another); see
___
also ante at 35.
____ ____
At the very least, that the students are private
actors is not such an open and shut matter that it should be
assumed sub silentio. If the student editors of the Musket
___ ________ ______
determined to run the paid political advertisements of
Democratic candidates for Town office but not those of
Republican candidates, and if the Republican candidates
sought injunctive relief against the students in their
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capacities as editors of the Musket, would we summarily
______
conclude that the challenged action was not undertaken under
color of state law? I would like to think not. Though the
facts of the present case are less egregious, the underlying
question -- not presented here because of plaintiff's
pleading decisions -- is the same.
III.
For the reasons stated, I concur in the majority's
conclusion that judgment was properly entered in favor of
defendants. I do not, however, concur in the reasoning that
leads it to this conclusion. I would instead resolve the
case under well settled law that precludes a finding, under
1983, against any of the defendants named in the complaint
for the theories of recovery plaintiff has advanced.
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